Posted
by
CmdrTacoon Wednesday May 28, 2003 @07:04PM
from the does-it-bother-you-when-I-poke-you-here dept.

An anonymous reader writes "[Darl McBride, SCO's chief executive stated] that unless more companies start licensing SCO's property, he may also sue Linus Torvalds, who is credited with inventing the Linux operating system, for patent infringement." It's right at the end of the story and it's quite a statement.

Ok, so what, exactly, are they planning to sue him for? It's not like he can be held responsible for what IBM may or may not have put into the kernel. Or can he?

The bigger question is, why does SCO think it can sue IBM for putting stuff into the kernel that SCO doesn't even offer? This has been covered to death the last few days, but jeez, SCO can't claim true enterprise scalability of any sort in its own products, so where can they claim the IP was theirs?

Not to mention that if anyone has a claim to sue Linus, it's the people who created Minix, for creating a workalike - and even then, he didn't copy code. Go look at the UNIX heritage charts for a much better understanding.

SCO is an emaciated, rabid dog nearing its death-frenzy howling and trying to scratch or bite as many others as possible. It's only natural for its foamings to get worse and its anger to increase when presented with images of people playing in the open-sourced software fountain (rabies induces hydrophobia, you know). If you can't shoot this rabid dog, grab your children and run away from it. If you wait a few days, it will have drowned in its own spew - but anyone coming near, especially investors, will find that even its carcass is less than worthless and should be avoided.

Not to mention that if anyone has a claim to sue Linus, it's the people who created Minix, for creating a workalike - and even then, he didn't copy code. Go look at the UNIX heritage charts for a much better understanding.

You don't have to copy anything to infringe on a patent. I can infringe on the Unisys LZW patent by writing my own LZW code. All I have to do is use (whether by copying or by innocently reinventing) Terry Welch's algorithm during the next month [ffii.org] in the USA.

Similarly, if Linus introduced into the kernel either his own code or code donated by someone else (IBM) that implements any algorithms for which SCO holds patents, even if the code in question comprises completely original implementations of those algorithms, then by redistributing the kernel without a license from SCO, Linus is infringing on SCO's patents.

IANAL, but I have been involved in a patenting process and subsequent litigation. There was talk about the concept of independent invention, which means that if someone comes up with a solution that someone else has a patent on, the situation isn't a clear-cut matter of infringement.

The next question to ask would be about the timing of this: Which specific functions and features of the kernel are under fire here? And when were these put into the kernel?

It seems to me that we've all heard a lot of noise from SCO, but I have yet to hear what they are claiming ownership to. Until they actually say what patents have been infringed and how, their claims are just hot air. If their claims have any validity, then why keep the details secret?

Barratry was a new term to me, so I looked it up.According to Infospace.com (via opera dictionary lookup, handy feature that) it is:1. fraud by a master or crew at the expense of the owners of the ship or its cargo.2. the offense of frequently exciting and stirring up lawsuits and quarrels.3. the purchase or sale of ecclesiastical preferments or of offices of state. Also,barretry.

Although the meaning in this context is #2. I suppose that since they are jumping headfirst into the middle of OS Holy Wars, #3 also suffices.

Similarly, if Linus introduced into the kernel either his own code or code donated by someone else (IBM) that implements any algorithms for which SCO holds patents, even if the code in question comprises completely original implementations of those algorithms, then by redistributing the kernel without a license from SCO, Linus is infringing on SCO's patents.

Ok. It have been stated already that SCO has no patents nor IP related to their claims. They do have code, but that sale didn't involve the IP nor the patents involved in the development of that code.

The really funny thing is that IBM, HP, Compaq (formerly Digital), Novell et all do have patents related to UNIX (and I'll bet they have patents over H2O methodus and aparatus). If SCO wants to get into that game they're going to suffer. A lot.

SCO distributed Linux under the GPL. If Linus is guilty of patent violation, SCO is guilty of copyright violation.

Section 7:

If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

Strange thought, don't you have to actually do something to violate a patent? The code in and of itself does not violate the patent. And if SCO violated Linus' copyright by distributing their patented code under GPL... then they're suing because Linus doesn't have a license... ugh.

The SCO v. IBM case arises from Project Monterey, which was a joint venture between SCO and IBM to port Unix to IA-64 or some such thing. IBM eventually pulled the plug, and focused instead on Linux.

SCO's primary claims against IBM seem to be that IBM took code that had been either brought by SCO into the project, or (more likely) developed by/in conjunction with IBM as part of the project, and used it in its subsequent Linux development.

So, even though SCO's products didn't (don't?) have the enterprise features they are accusing IBM of "stealing" from SCO, it seems to be their contention that the Project Monterey work was intended to develop such features, thus the claims for breach of contract and unfair competition.

SCO claims of pre-existing IP violations in "every" Linux distro would have no bearing on the IBM case.

Andrew Tanenbaum, the guy who wrote the operating system for educational purposes; some people who have taken operating systems classes may remember him as the guy that wrote their textbook as well.

Actually, what's interesting is why Minix was written. AT&T had allowed the source code to UNIX to be freely distributed to universities, etc. Then someone realized that there was commerical potential in UNIX and they began restricting access to the source.

Because it's frequently useful to have a functioning model at which to look when studying a subject, Minix was born to fill the missing educational void created by the commercialization of UNIX. It was designed to be big enough to be a real operating system, but small enough for one person to pretty much keep in his head at one time. Linux was created because there were a number of people who wanted to pile stuff into Minix which Tanenbaum didn't want there.

2) SCO has a patent, implemented by IBM, submitted to Linus and part of stock kernel

If the offending patent is implemented in a kernel relased by SCO, they're SOL for the patent infringement because of the GPL. They may still be able to sue IBM for breach of contract, but the offending code and implementation could remain.

3) SCO has code lifted by IBM, relased as patches

Trade secrets are different than patents as they can have no expiration date, but if it gets out, you have no recourse. Which is why you don't see patents for Coca-cola. It's a trade secret. If you know the secret and ever divulge it, there's probably enough legal paperwork you signed to make you wish you were in pound-me-in-the-ass prison instead of the hell the Coke lawyers will send you.

4) SCO has code lifted by IBM, released as part of stock kernel.

Again, maybe they could sue IBM, but SCO has also released the offending code. Thus they would have no recourse against Linus.

So the only situation that could actually cause Linux grief is #1. But the patch wouldn't be part of the stock kernel, meaning that it would not affect all Linux users. But as has been pointed out before, SCO doesn't seem to have many patents. Certainly nothing they could sue Linus for.

The Yahoo! Stock message boards are very active with major investors, partners and executives of each board's respective company. The SCOX board is reasonably active, but could use some of the strong, intelligent insight that is spread around slashdot on this subject.

I think those of us that are so inclined should voice our support for Linux, Linus, Open-Source, etc... there as well as here. Let your voice be heard by the people that invest in SCO, run it and do business with it...

The threat to sue Linus is an "I'll get your little dog too" move. Can the flying monkeys be far behind?
Hypothetical: if Novell shows up at the courthouse with a suit against IBM identical to SCO's, who gets to sue?

Sue Linus, for an implementation that mimics an API which is not under patent protection?

Sue Linus, for an implementation of an API under the U.S. Government sponsored POSIX public specification?

Sue Linus for the implementation of an API for which your claim to hold copyright cannot be legally documented?

Even if the Linux kernel were a clone of Unix internals, the 1991-2 date comes before the U.S. was even clear that software could be patented. In FINLAND!!!!! outside the jurisdiction of U.S. legal bogosity.

BTW: From when does this imaginary patent protection for the Unix kernel and I/O mechanism date? 1970? 1972? I smell expiration.

BTW: From when does this imaginary patent protection for the Unix kernel and I/O mechanism date? 1970? 1972? I smell expiration.

Well, see, like you say, they don't even own it, so it doesn't matter if the patent was granted yesterday - Novell isn't enforcing it.;)

What they're doing here is cute though - they are so willful at mixing concepts that it's disgusting. They blatantly mix arguments that are only germane to patents with a trade-secret situation. They always refer to SCO OpenUnix as Unix (circleR), a trademark they don't own and isn't unique to them. They claim that Linux is in violation of trade secrets they couldn't have been a party to. Every other day they claim they have patents and copyrights - then they kind of admit they don't - but not really.

I can't imagine their lawyers are that retarded that they can't make the distinction (in fact I know they're not). And they can't hope that IBM's are. Additionally, they can't be hoping still that IBM will settle, because IBM's foaming at the mouth now.

The only possible conclusion is they're using their spotlight to spread as much FUD as they can before this thing goes to court and they get reamed. Of course, they will lose any credibility they might have had in the process, and will certainly lose a great deal of business.

Something's making this "Suicide-by-IBM" gambit worth it - gee, I wonder what?

In other news John Ashcroft announced that terrorism charges might be brought against both motherhood and apple pie under the Patriot act. David Boies, representing the administration stated on behalf of his client, "These people have to learn that their actions have consequences".

I think a 24% crash in SCOs stock price today shows what the market thinks of this news, and exactly how much Linus has to fear.

The threat to get Linus is as hollow as the rest, no Judge will allow a suit to be brought when the ownership of the IP is in question, and given that Novell own a vast majority of the patents (832 unix and novell vs 117 Sco and Unix), according to the USPTO [uspto.org], the fact that Novell have taken some time and obviously a lot of expensive Legal advice before making such a series of claims vis a vis the ownership of the Unix IP and seems willing to step in the way of SCOs legal bullets, I'd say SCO's battle to steal Linux from the community has just got infinitely more difficult.

I think a 24% crash in SCOs stock price today shows what the market thinks of this news, and exactly how much Linus has to fear.

Although if I were Linus I wouldn't exactly take the market as my best legal opinion in the matter... IANAL and the M(arket) is sure as hell is NAL either.

The threat to get Linus is as hollow as the rest, no Judge will allow a suit to be brought when the ownership of the IP is in question

Like I said, IANAL, but I would have thought a judge would allow such a suit. After all isn't one of the principle functions of the civil court to decide exactly these sort of contract disputes?

given that Novell own a vast majority of the patents (832 unix and novell vs 117 Sco and Unix), according to the USPTO,

I don't believe the USPTO keeps track of changes of ownership of patent rights. Even if it did, this seems to be primarily a contract dispute not a patent one.

the fact that Novell have taken some time and obviously a lot of expensive Legal advice before making such a series of claims vis a vis the ownership of the Unix IP and seems willing to step in the way of SCOs legal bullets, I'd say SCO's battle to steal Linux from the community has just got infinitely more difficult.

I don't think so. It has got a little harder (hooray) but I don't think it has got that much worse. Even Novell's chief executive is quoted in the article as saying "We believe it unlikely that SCO can demonstrate that it has any ownership whatsoever in those copyrights" (my emphasis). That isn't the totally unequivocal statement I would have liked to hear.

Yeah, and after the Canopy Group realizes the pile of doo-doo that they stepped into with this one, they'll end up owning a whole lot less! Sell-off...

Idly, I wonder if the Canopy Group got sold a bill-of-goods by Ransom Love, who exited stage left before they could discover that the "intellectual property" they were investing in was second-hand vapour...

At this point it seems Linus is being given too much credit. He holds the trademark to the Linux kernel, but a news blob a while ago mentioned SCO is not suing for something added to the kernel, but to the Operating System in general by the companies. This completely removes Linus, until this statement.

And then again, trying to comprehend what SCO is claiming, that someone somewhere along the line copied code to the Linux system, either kernel or glibc or some applications. Did other developers know about it? Unlikely.

If someone copied code, and he is NOT employed by Linus, can Linus be sued for it? This is of course assuming we're talking about the kernel.

Linus knows all this, and like most of us, knows what SCO is really up to and how all this will end. After this ordeal, Linux might lose a small section of its market, but confidence in Linux's license and code will soar. The next company would not be able to sue Linux for any significant damage, and will be turned down faster by the courts. In that sense, its good to have an imbecile like SCO testing the legal foundations (and strengthening) of Linux, rather than someone bigger, with a more damaging lawsuit.

I admire Linux for his attempt to take the high road and ignore this as a minor attack. Unfortunately, it is becoming clear that this is not a minor attack. SCO is threatening the viablity of Linus' life work and his greatest accomplishment. If he will not fight when attacked this way, then he has no life's work or accomplishment.

Much like yourself I would guess.

Who are you to criticize him or say his accomplishments amount to nothing if he refuses to follow your advice, when he's contributed far more to the world than you ever will?

Having given something creative and imaginative to the world, you claim he has an obligation to defend it? His prior labors on your behalf are not enough for you?

What are you doing to defend Linux from SCO besides spouting at Slashdot? What have you invested in this fight or given to Linus that he owes you anything?

...I've served as a senior software developer as a contractor for the US Air Force. That portion of my life's work is protecting your sorry ass right now. So Fuck Off.

I love this attitude. Sounds just like the bit from "A Few Good Men": 'I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it.'

Problem is, as a citizen of the United States, it's not my privilege but my duty to question the manner in which my security is provided, because ultimately the people who do so work for me. It's my responsibility. I vote fo rit and I pay for it.

The other fun part is the way that many (note: not all, and from what I've seen not most) military types hold civilians in contempt. If you don't think we're worth defending, why the hell are you doing the job?
Besides which, if you love our country you've got to love the civilians. A body made up entirely of immune cells isn't going to last too long...

If you've ever seen linux talk, or read his book, that's his attitude (as I see it, YMMV, IANAL, IMHO, etc). He wants to program cool stuff that interests him. He couldn't care less about linux vendors, desktop wars, or 90% of the shit that "the linux community" is concerned about. I'd be willing to wager that if no one but him used Linux he's *still* be hacking away on it, because that seems to be the sort of person he is (the fact he's more a manager of code now than a coder aside).

I for one agree with his apathy... it's denying the sort of media circus that could result. Think about how much better all our lives would have been if the media had chose apathy in the OJ case (I know I'm going OT here) and just reported "OJ on trail for murder" and then proceeded onto the next story.

Personally I'm ignoring it all too, until some code that is actually damning is produced, or there is actually a legal leg to stand on, it's just noise.

Now if you'll excuse me, I have to get back to my perl, which is mostly just noise as well.

He wants to program cool stuff that interests him. He couldn't care less about linux vendors, desktop wars, or 90% of the shit that "the linux community" is concerned about.

That's correct, and it has been one of his great strengths. This lawsuit, however, is part of that remaining 10%. If SCO were to actually win a favorable judgement at trial, it could very easily diminish Linus' ability to "program cool stuff that interests him". The issue is therefore directly relevant to his own interests -- especially if SCO goes ahead an sues him personally, whatever the charge.

For this reason, I will be surprised if Linus doesn't make some sort of statement before much longer.

For this reason, I will be surprised if Linus doesn't make some sort of statement before much longer.

What would be the point of that? If SCO actually sues him, then he can make a legal defense. If SCO tells him what they might sue him over, he can issue a statement on his position. In the mean time, why bother? SCO will probably be in deep trouble with the SEC pretty soon, and will have other things to worry about.

Linus is probably best off to keep his mouth completely SHUT unless and until SCO actually does sue him, and then consult a lawyer before saying a word -- so he doesn't accidentally say something that works against him in court.

After all, SCO's gum-flapping has already compromised *their* case. Why should Linus make the same mistake??

To be honest, I wish that Linus had a reason to be afraid. His reaction to this whole thing started off as complete apathy and is still hovering around it. Linus has treated the whole incident as though it has nothing to do with him...

It's called "don't feed the troll." SCO is doing this for hype (and presumably to give the execs some time to dump their stock) so there is no reason to give them more heed than necessary.

It is becoming clear that SCO is no mere troll. They are not simply posting foolishness on some newsgroup or mailing list. Trolls don't ask a judge to enjoin your life's work. Trolls don't send letters to the Fortune 1000 companies threating potential legal action.

Linus doesn't sell linux. HE doesn't market it. He does kernel development, and his name is on it.. that's all.

Why shouldn't he be apathetic? SCO is getting far more attention than they deserve out of this.. at least in terms of the fear they are causing. There is NO WAY this case will succeed.. the absolute worst case will be IBM did something wrong, and IBM pays damages. No judge is going to smash linux.

What does linus have to fear? Can you imagine how much legal support Linus himself would get if sco tried to sue him personally? Just for what it represents, ever damn linux geek on earth would be ready to contribute to the defense fund, not to mention every linux company on earth. So far sco has ONLY SUED IBM, and have made only threatening vague statements and threats about their "Intellectual Property" to everyone else. Saying they had a contract with IBM that IBM has violated is one thing.. all the other vague shit they are claiming is something else entirely.

Linus has ALWAYS been apathetic. He has always mainted the world can do what it wants with linux.. he did it for fun. He doens't get too into the politics of it. He is a smart programmer, and a celebrity... but his life isn't riding on the success or faulure of linux. He isn't Bill Gates.

Linus has treated the whole incident as though it has nothing to do with him

Perhaps that's because it has nothing to do with him! According to Novell SCO doesn't own the IP, and so can't sue. A SCO vs. IBM really has little to do with him either, and ultimatly, IBM would just crush SCO anyway. According to a rational analysis, the IP in question, no matter who owns it, is of little value and coul;dn't have made a significant contribution to an already superior kernel.

I don't see why Linus should volunteer to be drug through politicial nonsense. He is taking the reasonable stance of being the creator of something great, not becoming our messiah and leading us through the murky waters of capitalism.

He's an engineer working for himself, his job is to create first and foremost what he wants. If it so happens to be what the rest of the world needs, well it's really nice that he is sharing his work with us and helping us all understand how to make a better operating system.

In any event, Linus may WANT to wage war, but he HAS to keep quiet precisely because of these lawsuits. If it in any way appears he has an agenda, it could be problematic for Linux's future. His decisions thus far represent what i would consider heroic acts of discretion. Let him be.

To be honest, I wish that Linus had a reason to be afraid. His reaction to this whole thing started off as complete apathy and is still hovering around it.

I have in the past been very critical of Linus' apathy and apparent blindness to some of the deeper underlying issues that will likely affect our freedom to code at all, much less code on the operating system our cooperative effort has created over the last 12 years or so, in part under his non-political guidance. Richard Stallman, as undiplomatic as he can be, truly does Get It(tm), and has done much to steer the community away from trouble (remember the KDE/qt/GPL conflicts. Imagine the situation we'd be in vis-a-vis SCO and M$ FUD if Gnome hadn't appeared, the flame fests hadn't been fought, and ultimately a workable, compatible solution hadn't been found, thanks to Trolltech's admiral flexibility and willingness to acknowledge mistakes and fix them, and thanks to RMSes stubborn insistance that the GPL be adhered to, no matter how cool the project.

All that having been said, the last thing on earth I would want to see is Linus sued for his 12 years of unselfish generosity. Do I agree with Linus' political (or rather, apolitical stance)? No, on that front I come down on RMSes side, despite my fervent desire that he learn a little diplomacy (which, to be fair, he appears to have done in no small amount, as listening to any of the speaches he's made in the last few years amply demonstrates), and despite the extreme irritation I felt at his 'lignux' proposal years ago.

I may not agree with Linus on some points, and I may wish he'd speak up a little more often to defend the Community he helped catalyze into being, but the man is entitled to his own world view, his own opinions, and no one in their right mind should wish something so awful as a lawsuit (however unfounded) onto someone who has done so much to enrich us all. As one who is personally bearing the brunt of an appalling act of barrotry myself, and having to defend against a frivilous, but non-the-less expensive, lawsuit (condo related, for the curious), I take particular exception to the notion that Linus deserves any kind of kick in the pants, much less a kick to the head through SCO's (or anyone elses) letigious thuggary and barratry.

I relish the demise of SCO, and the dozens of countersuits and investor lawsuits that will undoubtably follow. With luck, the fools will have left an I undotted or a T uncrossed, and be doing some hard time in a 6'x9' cell to boot, compliments of the SEC.

Linus has said that RMS is the Pholisopher (sp?) and he is the engineer. The engineer shouldn't have a side it is RMS that should stand up. He is the one that came up with GNU and wrote the GPL licenses. Linus just used the licenses. I think Linus takes a good stance by not saying anything because he did create this community but he is not the leader of it.

Linus has better things to do than respond to trolls. SCO is a troll. A troll with a lawyer is still a troll.

They're not even a particularly *good* troll, at least by Slashdot standards. The original complaint contained really bizarre claims like the "Linux is a bicycle" paragraph, and while that can be amusing it does kind of tell people that you're not serious.

And then SCO started changing their story halfway through -- "it's just IBM", "it's not in the kernel", "it's in the kernel", "it's Linus". That kind of inconsistency always gives an amateur troll away. Look at the Subject Line Troll or the Recipe Troll -- they pick a good thing, and they stick to it. SCO could learn from them.

I think Linus was probably pretty sure that there was no infringing code in the kernel, and so he decided not to waste time or breath on the matter. If only the rest of us were so smart.;-)

Linus is taking exactly the correct approach to this whole mess. Whether it's deliberate I can't tell you. His approach is best described as public indifference. There are three reasons why this is best;

SCO would like nothing more than to have Linus apoplectic over their actions. Nothing would serve the FUD machine better than to have Linus acting hysterical and muddying the water. If Linus started saying or doing dramatic things the targets of SCOs threats would be that much more nervous. Linus is not a court of law, CEO or powerful shareholder. He can't force anyone to do anything about any of this. I think the best thing he can contribute is quiet indifference.

Indifference is the ultimate insult. At the very bottom of public discourse we find the Troll. The Troll feeds off anger. The Troll creates as much trouble as possible and feeds off the results. Anger registers as a negative on the attention scale, but at least it's non-zero. Having people pissed off you is clearly less than being admired and loved, but being ignored is worse. The more indifference SCO encounters, the more dramatic they become, because being ignored is not acceptable.

Indifference, by default, prevents anything stupid being said. Rule #1 when dealing with lawyers and courts; Shut Your Mouth. It doesn't matter how exonerating what you say might be. It will eventually end up on the point of the dagger you find sticking out of your chest.

Those are three good reasons why Linus not being an activist in this matter is best. Now you'll have my opinions;

You want Linus to be an activist. In my opinion we have far more than enough of those already. Why can't we allow at least some of the non-activists in this world a little oxygen? Must everyone who wishes to matter be a megaphone for some cause? Have you lost the ability to appreciate spin-less competence? I long ago concluded that the vast bulk of activists we seem to spend so many of our mental computons listening to have zero interest in what their advocating anyhow. Most often they appear to be playing to their peers.

UNIX has been a legal football for going on 20 years. Wouldn't it be nice to just let the damn court dates arrive and get it over with, with as little drama as possible? Maybe, just maybe, if everyone took the Linus approach, we could avoid creating anymore celebrity lawyers/judges out of all of this. God that would be nice.

"Some people have told me they don't think a fat penguin really embodies the grace of Linux, which just tells me they have never seen a angry penguin charging at them in excess of 100mph. They'd be a lot more careful about what they say if they had."

- Linus Torvalds.

"Darl McBride, I'm pleased to have you as my new employee. Mr. McBride, could you please move two feet to the left. Yes, there. Perfect. No, you don't have to do anything else, just stand there."

- What I imagine Linus' first words would be at the shareholders' meeting after he becomes the new majority shareholder of SCO.

In short, Novel thinks SCO has lost it's gord, SCO knows they are hosed, and are creating MS style FUD by saying anything to get their lame company in the news....

I hope Novell is right in:"We believe it unlikely that SCO can demonstrate that it has any ownership whatsoever in those copyrights," said Jack Messman, Novell's chief executive, in a statement Wednesday

But anyway, I'd pay a couple of bucks, especially if we get a Pay-Per-View event of Linus kicking McBride upside the head.

You dont have to have any previous knowledge of a patent to violate it.

I don't believe they can patent the look and feel of Unix. Those suits were lost a long time ago.

While they might well be able to patent the exact code of a unix implementation, if Linus wrote his own code from scratch, or derived it (as other posters have said) from Minix, it would seem his code and methods of implementation are not any patented by any other person.

Unless a process patent (i.e. a patent on anything that implements "Unix" exists) -- which I completely doubt -- I don't see how Linus's code could be considered patented by anyone else.

Besides, I was using Unix in 1977. Those ideas have to be either prior art or expired patents by now.

What patents still exist that cover Unix? Don't they expire after 17 years? I don't think patents filed for "time sharing systems" or "virtual memory" in the seventies are still applicable. Besides, if this is valid, why are they not also suing everyone else? I know Sun licensed the Unix code to make Solaris, but did they license patent rights as well? What about FreeBSD? GAAHHH! How can SCO even claim that this nonsense is valid?

IANAL (/code needs a macro for this) but my understanding is that the 4.4BSD-lite release is completely clean and can not be sued as part of the UCalifornia Board of Regents vs. AT&T settlement. ATT got to keep all of the nifty 4BSD networking code (Bind, TCP/IP stack, real low level stuff all the way through telnet and gopher clients) without displaying the BSD advert clause in return. This split happened after the creation of Minix (and Linux), and should have absolutely no bearing on this case, with the obvious reality of modern *BSD's/OSX/Darwin (all derived from 4.4-lite) being completely free of fear of SCO on Unix IP infringement claims.

If SCO decides to actually sue Linus, I hope all the server companies (or atleast the big ones like IBM, Red Hat, Penguin Computing, etc.) will help with his legal costs. After all, he did give them a great product without them do all the R&D themselves.

I don't know which planet YOU are from, but in my book SCO (the f**kedcompany formerly known as Caldera) is an extremely innovative company. I mean, when I installed their version of Caldera Linux back in 1998, they had a game of Tetris that you could play while the installer ran. Tetris! WHILE YOUR OS INSTALLED! Now, if that's not real innovation worthy of IP protection, I don't know what is. So don't you dare come along mister and say that SCO has no real effective Unix IP to license:P

The thing is, I got two interesting replies that went largely unnoticed:

I would be so happy if IBM stole that bit of IP and got it into every distro. That would be schweet, and well worth another billion dollar lawsuit.

OK, so why not? I second Onerous Cowards' motion. Except, instead of stealing, IBM should immediately obtain a contract with The Tetris Company to redistribute Tetris. Then they should file lawsuits against SCO for infringement. Even if the lawsuits are frivilous, it would still be a thorn in the side of SCO when it is realized publicly that they very blatantly stole the IP from The Tetris Company.

On a side note, it seems to me that Caldera has a serous history of copying technology... DOS and Tetris are the ones I know about, plus they came up with a Linux distribution... ooh there's originality at work. Also, I believe they bought those rights to UNIX (acquired when they bought the original SCO, IIRC) How can this company turn around and sue IBM for infringement?! It doesn't make any sense. As far as I can tell, that install+game really is the most innovative they've ever been as a company. God that was brilliant. I hate waiting.

Caldera acquired DR-DOS from Novell, which Novell got from Digital Research. While I agree with your main point, it's important for old geeks like me to clarify this sort of thing. DR-DOS was the legitimate descendant of CP/M (it's actually the renamed CP/M-86). If you know your MS-DOS history, you'll know it came from QDOS, which was Seattle Computer's unauthorized 8080-to-8086 translation of CP/M. So in a real sense, MS-DOS is in fact a copy of DR-DOS, not the reverse.

It's also worth giving credit where credit is due. Tetris aside, Caldera was really the first company that pushed concepts Linux users take for granted now like easy installs, file and network browsing, etc. They may have dropped the ball years ago, but they were the first "Linux-focused company" to put the ball into play. I don't consider the current SCO to have much to do with that Caldera, though.

I've been an avid FreeBSD user for years, and I remember when this same exact thing happened with AT&T vs. BSD years ago. I would seriously avise the Linux camp not to take this threat lightly (as everyone seems to be doing) because even if you are in the right, this could screw up Linux distribution for years.

All SCO has to prove is that portions of code that it licensed for AIX to IBM ended up being used in Linux. This is alot easier than you think. All it takes is ONE PROGRAMMER out of the thousands that contribute code to have done this, for the Linux camp to be screwed. Since no one is out there auditing Linux code looking for stuff like this - how hard do you think it is for one person out of thousands of developers to have done this?

Look at how much code already is shared between the various BSD and Linux flavours already. Kernel drivers often have huge chunks of code that are just copy and pasted from one flavour to the next.

BSD had the jump on Linux way back in the day but has less marketshare now because of the same BS that happened with the AT&T suit oh so long ago - and we ended up winning that suit!

Be wary. This issue is not as cut and dry as all you may seem to believe. If SCO can prove that one person messed up, Linux is screwed. All it takes is 1.

I totally agree with you on this which actually is bad in the (often stupid) court system.

IBM can't afford not to audit and maintin source code that they licensed in a total clean-room situation. If an IBM employee violated that contract, then IBM could be in a bad hole (but see more below). Engineers may make mistakes, but organizationally, IBM "knows better" than to allow a breach like this to get out the door.

A slimy SCO lawyer will certainly point out that IBM has extensive code reviews specifically to prevent this sort of breach, therefore this violation must have been intentional and systemic from IBM management - a more serious situation.

Of course, IBM doesn't mess around with little worms like SCO on something like this. In addition to the group that's working on a direct defense, there's a small army of IP specialists that at IBM that are working on kneecapping SCO before they even get to the courtroom. IBM has tens of thousands (might well be over 100,000 these days) of patents that cover every aspect of computing since they were a cash register company. Now, maybe SCO has been totally clean and not infringed or violated some juicy patent from 1945. Maybe SCO has added so little that there's no conflict anywhere.

But if they haven't carefully been reviewing everything that IBM has patented since before their engineering department was born, there's a pretty good chance that the may be in violation of a good amount of IBM's IP. Then SCO will get a nice letter from IBM with about 30 pages of infringments from their crappy installer and perhaps they'd like to sit down and set up a cross-licensing agreement to resolve these issues before they commit themselves to a literal lifetime of defending themselves in court.

*That's* how an IBM or Microsoft plays ball. And there will be no FUD in the halls of SCO when IBMs says it time to quit playing.

We (Tivoli Indy) had an IBM IP guy come in and explain a lot of this stuff. He basically explained the strategy of patenting anything and everything possible.

Effectively, if someone sues them they search their IMMENSE inventory of patents and find things that apply (even remotely). After that, it's a simple matter of cross-licensing or annihalation via litigation.

BTW, IBM is the #1 patent holder in the US. They file more patent applications than ALL OTHER parties in the US. They have a VERY NICE incentive program for folks to patent what they do. And they DO take advantage of it.

Back in '92, someone made this exact argument to me about the AT&T/BSD case. He was wrong: the BSD people had screwed up (there were several files that had tainted AT&T code), but BSD won anyway.

You forget an important lesson of the AT&T vs BSD case. It was found that AT&T itself was engaging in serious copyright violation (removing all the University of California copyrights from their code). They had to settle.

Similarly, SCO will be found to be violating all kinds of IP rules itself: IBM patents (you can't sneeze without violating an IBM patent, they have so many), remaining BSD code with copyrights stripped, GPLed code copied into their Unix product, etc. Then they have the problem that
they don't own the copyright!. Novell does.

Finally, there's a huge difference: the GPL, and the fact that SCO itself distributed and worked on Linux for years. They can't claim ignorance, as their own engineers worked intimately with the Linux kernel and OS, modified it, and distributed it. By doing so, they granted a GPL license on what they distributed to the world. They can't revoke that.

Actually SCO would have to file a seperate lawsuit because this lawsuit is about trade secrets.

I'm sure that you know very well that trade secrets can't and therefore don't have to be put back into secrecy after they have been published. The only consequence is that the leaker (which would be IBM) would have to compensate the owner of the loss.

So Linux doesn't even have to be changed, they can continue to use the no-longer secret trade secrets anyway. The absolute worst-case of this suit is IBM being fined.

This is by far the most irrational thing I've seen from SCO. Go to
www.uspto.gov and search the patent collection online. Look for "Santa Cruz
Operation", "SCO", and "Caldera" as patent owner. They were granted one patent
last month, and not a significant one. There isn't much else there.

A lot of patents owned by other people mention SCO as an example of a Unix
system. That is by far the largest source of mentions of their company name in the patent database.

So, where's the ammo in Darl's gun? No patents. No copyrights for the stuff
he said he owned. No trade secrets, as far as I can tell.

And then, to threaten Linus Torvalds as an individual sounds especially whiny.
multi-Million-dollar corporation sues San Jose programmer who has made a life of giving his work
away for free. SCO has descended to playground-bully level.

The Company has an arrangement with Novell, Inc. ("Novell") in which
it acts as an administrative agent in the collection of royalties for
customers who deploy SVRx technology. Under the agency agreement, the
Company collects all customer payments and remits 95 percent of the
collected funds to Novell and retains 5 percent as an administrative
fee. The Company records the 5 percent administrative fee as revenue in
its consolidated statements of operations. The accompanying October 31,
2002 and 2001 consolidated balance sheets reflect the amounts collected
related to this agency agreement but not yet remitted to Novell of
$1,428,000 and $1,894,000, respectively, as restricted cash and royalty
payable to Novell. The October 31, 2001 balances were reclassified
from cash and equivalents and other royalties payable to conform to the
current year presentation.

This is SCO's admission that Novell owns Unix System V, all revisions - that's
what they mean by "SVRx", and pays Novell 95% of the royalties. SCO gets
to keep 5% as administrative agent.

Yeah, I was watching the stock price plummet, interestingly the bulk of the fall took place after this comment from McBride, which indicates that nobody takes him seriously, I imagine SCO stock is facing a hammering tomorrow.

It's a great job you, esr and the rest of the community have done over the past few weeks, thank you and I hope we can now clean Sco's clock for them:)

According to Novell, the patents are assigned to Novell, and there are a bunch of patents there, though nothing jumps out as an obvious "Unix" patent. I'd just like to know which patent they are talking about. It seems contrary to the whole patent system not to mention which patent you claim someone to be violating.

I greatly enjoyed the SCO call session earlier. I only jumped in near the end, so I'm not sure exactly who it was that was representing SCO at the time - but he was one serious spin doctor. He adeptly deflected all blame, made it sound like being in the business of sueing people over IP (which is all SCOSource does) was a noble and legitimate business model, and even made a valiant attempt to prove that SCO, not Novell, actually owns the rights to Sys V. I couldn't believe how casually the callers accepted his rubbish as fact.

I wonder what the spin doctor would have to say to your above post. That's some pretty damning empirical evidence that disconfirms everything he claimed.

This keeps getting better. I can't believe that something concerning intellectual property, UNIX and Linux, and websites full of people that like to debate the effectiveness of Python over Perl, can be this damned entertaining.

For a long time when these people mentioned IP, we thought they meant copyright infringement, not patents, but now there's all this talk about patents. However, no one lists which one(s).

There's the famous 4135240 setuid patent [uspto.gov], which Bell labs granted to the public domain, and which has expired by now anyway.

Novell gave us a clue, by pointing out that some patents might be in their name. But searching [uspto.gov] for Novell and Unix on the USPTO web site yields 62 patents. Most of these seem like they came from work on NetWare, but it is hard to tell for sure. Looking through these patents shows how bogus the US patent system is -- I quickly persued several at random, and every one was either an obvious technique, or being violated all over the place, or both. (IANAL).

The first patent returned by the search (6,546,433) lists "PowerBuilder 5 Unleashed!", by Sams publishing as reference material. Frankly, if I were a patent examiner, this would be evidence alone to reject the application.

Darl McBride, SCO's chief executive stated] that unless more companies start licensing SCO's property, he may also sue Linus Torvalds,Isn't that outright criminal?? That's quite close to a criminal taking an innocent bystander in a bank, and saying, give me all the money or this bystander gets it in the head. That's usually called hostage taking, and carries a charge of kidnapping. Whereas in the SCO case, (I'm paraphrasing) "People better start buying licenses from us, or we'll go after Linus" is called extortion or, as the case may be, blackmail. If SCO has legitimate claim to sue somebody, they should sue, but to use threats against someone to get some other person to do something is illegal. Good God SCO, WTF is up with you?? At first I was skeptical of you, then I was disgusted with you, earlier today I was laughing at you, now, Jesus H Christ man, you people are treading on some seriously thin legal ground. Are you sure you have any legal counsel?? Outright extortion attempts are liable to get you some serious jail time that even Microsoft couldn't buy you out of. Give up now, while you still have a chance to at least do time in "Club Fed" for SEC violations and lying about IP ownership, don't push it until you do serious time for criminal acts....... Aww, what am I saying, keep it up you punks, then you can spend some "quality time" with felons who'll treat you like the bitch you are.

Let your representatives in the EU, which is considering software patents, know about this,as an example of why software patents are a BAD IDEA! A lot of European cities (Munich comes to mind) have shown a shining to Linux, and software patents could leave them without that choice!

June 1, 2004. Santa Cruz, CA: SCO threatens to sue yet more icons of goodness and decency
In yet another move calculated to antagonize virtually the entire world, SCO announced today that they would pursue multi-billion dollar lawsuits against basketball legend Michael Jordan, all kittens less than a year old, and Jesus Christ, for failure to pay royalties on all revenues that "might even conceivably be gained by exploiting our intellectual property in some fashion or another."
SCO CEO McBride, speaking from behind the door of a reinforced bunker in an undisclosed location, stated that although none of the parties have used UNIX or Linux as far as he is aware, the decision was made to pursue litigation anyway "for the hell of it. I mean, we're already suing fifty thousand parties as it is, from IBM to a rusty tricycle in Ai, Alabama. What's three more?"
The last year has not been good to SCO. Novell and IBM both filed $10 billion lawsuits against the company, and their stock was delisted after the share price dropped from $8.30 a share to about eight cents a share. This led SCO to file a series of bizarre lawsuits against figures in the Open Source and computing world, including Eric Raymond, Bruce Perens, Richard Stallman and Tux the Penguin.
Eventually, SCO ran out of people in the computing world and started targeting smaller, less fortunate users and groups, starting in early 2004 with a class of 12th graders in Portland, Oregon, for maintaining a Linux laboratory as a school project. Starting from there, they began to sue "everyone conceivable" who might have derived profit, use, or fun from Linux.
The public reaction has been overwhelmingly negative. Two months ago an unknown terrorist organization detonated an atomic bomb over SCO headquarters in Orem, UT, and then immediately received a pardon from US Attorney General John Ashcroft. Vigilantes and bounty hunters now scour the Rocky Mountains for company employees, who fetch rewards of $1000 to $1,000,000. SCO executives are featured every night on FOX's "America's Most Wanted." Last week, Time named McBride the Most Hated Man in America, beating out even Osama Bin Laden and Michael Bolton for the title.
"We're not discouraged," said McBride. "Eventually, the judge will see things our way and we'll start collecting royalties. And then the world will be MINE! ALL MINE!" McBride then broke out into hysterical laughter, which continued into the lonely night.

I keep posting this, but nobody seems to get it. SCO as a **distributor** of the linux kernel has committed copyright infringement UNLESS they have properly licenced all copyrights from which it is derived. If somebody else (IBM or Linus) creates a work which is improperly licenced, but is derived from GPL work, then SCO **STILL** must abide by the GPL in order to distribute a deriviative of the GPL portions.

In order to do that, they must abide by the clause (clause 2b) which requires them to licence "as a whole" to "all third parties" (which certainly includes Linux and IBM) the works which they distribute under the terms of the GPL, assuming they either modify the source (clause 2) or distributed binaries (clause 3). This is not compatible with patent enforcement (vs Linus) or with trade secret protection (vs IBM).

Clause 6 states that no "further restrictions" are allowed. Clause 4 moreover states that any attempt to "otherwise... sublicense or distribute" the work will "terminate your rights under this License".

Finally, Clause 5 states that "by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it", which implies that SCO has accepted the GPL by distributing Linux, which even under SCO's extreme viewpoint is inarguably "based on" GPL works.

Linus should and frankly MUST sue SCO for copyright infringement for distributing a derivitive of his work without a licence. In fact, any other kernel contributor could do the same so long as their original work is included in what SCO has distributed. It does not matter if SCO wilfullly commited copyright infringment (it is still infringement), though it is untenable to call it unwilfull after they began publicly proclaiming to retain rights to elements of Linux.

What I really, really love about this story is how the CBS MarketWatch journalist displayed his complete lack of understanding for Linus' importance in the IT world and stuffed the threat of a law suit in as an afterthought at the bottom line. I've lost track of how many magazine covers Linus has been on, his name is mentioned in just about every article on Linux, he even has a frigging biography that you can buy in just about every major bookstore in the planet -- and CBS hides it in the last line. Beautiful.

Makes me want to go back and see how CBS did Lady Di -- Traffic was heavy today in Paris, France, with light rains causing trouble for inexperienced drivers (...) In one of the day's many accidents caused by excess speed and driving under the influence, Lady Diana of Great Britian was killed. Light showers are expected in Roissy in the north of the city tomorrow with evening highs at around...

Or maybe the death of Christ: Two common criminals died today as Roman justice rammed home its message of no tolerance [no zero, remember] with iron spikes through their hands and feet (...) The two men's crosses were separated by that of Jesus Christ, Saviour of Mankind, who also died (temporarily). The Jerusalem branch of amnesty imperium romanum condemned the two criminals' execution as...

Granted this is civil... but look at what Adobe and the US criminal justice system tried to pull off with Dimitris Sklyrov. IMHO these issues are related because the legal system is now being employed to harass and threaten programmers. Any one of us can be a target. 10 years ago we could pursue our careers with very little threat of a law suit. Today - if one has a success then the question becomes how many times over will we be sued.

The whole issue illustrates how fucking preposterous the US legal system has become and other countries are planning to follow suit. Of course we also have countries like Norway and the issue of the DeCSS and Joh Johanson and I have no idea what label should be stapled to this mess. It would be simpler to just take the lawyers involved out behind the barn and get rid of them! But the horrible thing is that the victims of this perverted system are expected to finance it. Next time you are in a courtroom ask yourself of all the people in there - which ones are not being paid?

Here we have a threat to sue an individual (Linus) because he used his own ideas... ideas that apparently an unrelated individual manages to patent in a country (USA) that the person (Linus) doesn't live in.

Then after this flight of stoopidity - people come forth and suggest they will donate to the defense fund. Of course - this simply subsidies the US lawyers who collectively created the problem in the first place.

The bottom line is that this is getting right fucking crasy! Somehow we need to figure out how to counter this.

There are two sets of laws here that are working against us. First is patent law which as it is currently implemented has the following consequences. 1) if you own a valid patent and a large company wants to use what you invented - they will simply claim your patent is invalid and bankrupt you in the courts. 2) if they own an invalid patent then you cannot afford to fight them in the courts. Thus - you cannot do your job. You cannot pusue your career. Here we have intellectual feudalism where the sherrif of cyber notingham tries to turn you into a peasant.

[read up on Leo Farinsworth if you doubt this - he invented television and died a broken man - bankrupt as well - because RCA fucked him over in the courts]

Then the second set of laws are in the same group as the DMCA where we sometimes face criminal charges because perhaps someone wants to play a CD or a DVD and does not want to use software from Microsoft to do it.

-----------

Patents are only valuable to large companies and they are only valuable because they can be used to restrain trade. Given this - large companies pool their patents in a defacto free patent zone. Those on the inside are more or less protected and do not run the risk of litigation. Anyone on the outside is fair game. What a wonderful little oligopoly eh?

Maybe "we" need to start playing this game. Suppose we organised an Open Source Patent Association and paid a feee like $100 bux to join it. This would create a pool of funds whereby the "best" ideas in the open source community could be patented. All members of the association would recieve protection and access to any and all patents. Any closed source shop would be billed or face court action -or- have to pool their patents in order to join.

Since most of the great ideas are invented in the open source community - in short order this association might have a rather wicked sheaf of patents and this could be used to ensure that members of the open source community cannot become victims of bad faith litigation.

But if they harass Linus, it's travel time!
I have some vacation time available at work and would show up with other protesters to picket outside
SCO's headquarters [sco.com] if
that helps put some pressure on them.
We can keep piling on the pressure from different directions if they want to play a PR game.
We'd make sure the local media in Salt Lake have enough advance notice to get their cameras warmed up while we're enroute.

Salt Lake City is easily accessible by air (a Delta Airlines hub.) It's a 2-hour non-stop flight from any of the SF Bay Area's three major airports. Or a 1-1/2 day drive if you prefer a road trip.

Tell you what, folks. If no one comes down here to Crazy Darl's Unix Emporium and buys a license in the next hour, I'm gonna club this baby seal. That's right, I'd club a baby seal to make a better deal. And I'll do it, too... cuz I'm Craaaaazy Darl.

For those who have forgotten, Halloween VII was a leaked memo from MS dated Sep 2002. It was a
survey report, discussing what types of FUD were most effective, and
where FUD was backfiring. From this:

Direct attacks of OSS and Linux are NOT highly effective. Messaging
that discusses possible Linux patent violations, pings the OSS
development process for lacking accountability, raises the specter
of possible security flaws, and the like are only marginally
effective in driving unfavorable opinions around OSS and Linux, and
in some cases backfire. On the other hand 'positive' OSS and Linux
messaging, i.e. access to the source code, the price, lower TCO, the
ability to freely make copies, and the like drive very favorable
opinions around OSS and Linux, both across geographies and
audiences.

"Linux patent violations/risk of being sued" struck a chord with US
and Swedish respondents. Seventy-four percent (74%) of Americans and
82% of Swedes stated that the risk of being sued over Linux patent
violations made them feel less favorable towards Linux. This was the
only message that had a strong impact with any audience.

And later:

Messages that rely on an abstract discussion of intellectual
property rights are not effective.

SCO announced today that after Linus, they're going after von Neuman for having invented the computer. "It's clear that his research was specifically designed to lead to the machine which is responsible for violating our intellectual property rights," SCO spokesmen were quoted as saying.

When asked if SCO had considered that without von Neuman's work they wouldn't have any intellectual property to begin with, the spokesman chided the journalists present for splitting hairs and using legal mumbo jumbo to confuse the issue. "The fact is, everyone in the world owes us a living, and they better pay up before we sue the bejeezus out of them. We have legions of lawyers ready and waiting."

The interview was cut short when a copy of an otherworldly book dropped out of the sky and landed on the stage with a thump. When examined it appeared to be an almanac or encyclopedia of otherwordly origin, and curiously enough it had fallen open on the following entry: "SCO: a dirty bunch of swindlers whose backs were first against the wall when the revolution came."

What many people don't realize is that there are literally tens of thousands of bogus patents out there relating to all aspects of software, interface designs, methods of data communication, etc. The ugly reality is that the USPTO pretty much rubber stamps everything that comes their way without much review. If you look hard enough, pretty close to every substantial piece of code in existance, Open Source or proprietary, likely violates somebody's nonsense patent. While these bogus patents are rarely enforced, the SCO situation is proof that the danger exists, even at an 'unfounded threat' level. But as proprietary software empires fall to Free alternatives, we will quite likely see more of this nonsense.

The long and short of it: our basic freedoms, especially speech, are being squelched by overzealous patenting. You cannot write software today without worrying about accidentally "re-inventing" or bumping into somebody's supposedly patented idea The modern patent system has decayed precisely into what Thomas Jefferson envisioned when he wrote: "..For to embarrass society with monopolies for every utensil existing, and in all the details of life, would be more injurious to them than had the supposed inventors never existed; because the natural understanding of its members would have suggested the same things or others as good." AND.. "the abuse of frivolous patents is likely to cause more inconvenience than is countervail by those really useful"

Software patents must be eliminated. All of them. They are a threat to free speech and expression. They are a threat to innovation. They are a threat to the Open Source movement. Software patents are by very nature trivial--something the USPTO is not supposed to allow.

With that in mind, here are some links to get you started on some anti-software-patent activism:

The Shakespeare character who said "first, kill all the lawyers" was a tyrant. He wasn't interested in killing the lawyers to stop stupid lawsuits, he wanted them out of the way so he could do whatever the heck he wanted.

No, he didn't. SCO is scrounging around for anything that they can find to scare the Linux community into submission.

They KNOW that they are going to die and it's obvious that they don't have a case. Their own release of Linux obviates any patent claims they may have.

It's dubious, at best, to claim patent infringement when YOU yourself have profited from the very OS that you claim infringes!! Darl McBride has, singlehandedly, reduced SCO from a respectable company to a laughing stock which provides daily amusement for us.

We should, in fact, applaud him for making us laugh so much recently.

It is obvious and it has been obvious from the beginning that SCO's ENTIRE goal has been to sew FUD and that's EXACTLY what they're doing.

Well, it's still trading way above where it was before all this started. Wall street pumped this stock up pretty much, and if any insiders are selling, I hope the SEC is taking notes. Looks like a pretty blatant pump-and-dump to me.